Kevin Wynn Fisher

The appellant law firm appealed an order of the motion judge that set aside a report and certificate of assessment.

The motion judge had ruled that the assessment officer erred by refusing to grant an adjournment when the respondent client failed to attend the first day of a scheduled five-day hearing due to a communication error by court staff, thereby depriving the respondent of procedural fairness.

The Court of Appeal allowed the appeal, finding that the assessment officer's decision to refuse the adjournment was reasonable and that the motion judge failed to give adequate deference to that decision.

The court considered the respondent's prior conduct, including failure to provide required documentation, cancellation of mediation, and late retention of counsel, in determining that the assessment officer properly balanced the circumstances in the interests of justice.

Following the dismissal of the plaintiff's action for damages via summary judgment, the defendant sought costs on a substantial or partial indemnity basis.

The plaintiff argued the claimed costs were excessive.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, including the proportionality principle under Rule 1.04(1.1) and the objectives of Simplified Procedure (Rule 76), determined a fair and reasonable costs award.

The defendant's pre-litigation offer did not meet Rule 49 requirements for substantial indemnity, and the plaintiff's conduct was not reprehensible.

The court awarded the defendant $15,000 in partial indemnity costs, inclusive of disbursements and HST.

The plaintiff, a 59-year-old senior designer, brought a motion for summary judgment against his former employer, Thumper Massager Inc., alleging wrongful termination without proper notice or pay in lieu thereof after less than six months of probationary employment.

The plaintiff sought damages for pay in lieu of notice, expenses, and benefits.

The court found that the plaintiff was bound by the six-month probationary period in his employment contract and that the employer was entitled to dismiss a probationary employee without cause or notice, provided the assessment of suitability was not performed in bad faith.

The court determined that the defendant had provided a fair opportunity to the plaintiff and did not act in bad faith in terminating his employment.

Consequently, the plaintiff's claim was dismissed, and summary judgment was granted in favour of the defendant.

The plaintiff sought leave to appeal an order dismissing its motion for partial summary judgment, where the motion judge found insufficient evidence to precisely identify the intellectual property sought to be protected.

Applying the strict test for leave to appeal under Rule 62.02(4), the court found no conflicting decision on principle and no good reason to doubt the correctness of the order, despite minor issues with the motion judge's articulation of legal tests.

The court also determined that the matter did not raise questions of general or public importance.

The motion for leave to appeal was dismissed, and costs were awarded to the respondent.

The plaintiff, One Street Digital Inc. (OSD), brought a motion seeking a final order declaring its ownership of proprietary software ("Foundation Framework"), restraining the defendant, Berkeley Payment Solutions Inc. (BPS), from using or altering it, and requesting costs.

The court dismissed OSD's motion, finding that OSD failed to provide sufficient evidence to precisely identify the non-copyrighted proprietary software it claimed.

The court also determined that the relief sought was analogous to injunctive relief, and OSD did not demonstrate irreparable harm, as potential damages related to licensing fees and intellectual property value could be adequately assessed at trial.

The appellant purchased three apartment buildings from the respondent.

The agreement included an escrow provision holding $300,000 of the purchase price, to be released to the respondent if the gross rental income reached a $960,000 threshold at the end of a three-year performance period.

The application judge found the threshold was met and ordered the funds released to the respondent.

On appeal, the Court of Appeal found the application judge erred in his approach to contractual interpretation by separating the words from their context, contrary to Sattva.

However, applying the correct framework, the Court concluded the parties intended to measure income performance by annualizing the rent roll at the end of the performance period.

As the threshold was met under this interpretation, the appeal was dismissed.

The appellant, a commissioned sales representative, appealed the dismissal of her claim for unpaid vacation pay under the Canada Labour Code.

The motion judge had found that the employer could satisfy its vacation pay obligations by paying them out of commission sales.

The Divisional Court allowed the appeal, holding that the employer failed to show the employee's commission rates were adjusted to include vacation pay or that she received a benefit equal to her statutory entitlements.

The Court also found the claim was not statute-barred, as the limitation period began on the last day of employment.

Judgment was granted for the appellant in the amount of $35,396.02.

Application concerning interpretation of an escrow clause in an agreement of purchase and sale for three apartment buildings.

A portion of the purchase price was held in escrow for three years and payable to the vendor if the buildings' rent roll met a specified annualized threshold by the end of the performance period.

The purchaser argued that performance should be assessed based on actual rental income over the three‑year period.

The court held that the clause required examination of the rent roll and that the escrow amount was payable if the annualized gross rental threshold was reached in any month during the performance period.

Finding that the threshold was met in April 2014, the court ordered the escrow funds and accrued interest paid to the vendor.

This costs endorsement followed a successful application for the appointment of a receiver/manager, recognition of share entitlement, and transfer of a mortgage interest.

The court held that substantial indemnity costs were justified against two respondents because their litigation conduct, including non-compliance with a consent order, provision of false information, and misuse of corporate assets, was reprehensible.

A third respondent, while unsuccessful, was ordered to pay only partial indemnity costs because the misconduct of the principal actor could not be attributed to her personally.

The court also reduced the fees claimed as excessive and disproportionate, but allowed substantial BDO investigation accounts as disbursements against the two culpable respondents.

On a summary judgment record, the court decided a federal employment dispute concerning entitlement to vacation pay for a commission-only employee under the Canada Labour Code.

The plaintiff argued for vacation pay in addition to commissions, while the defendant maintained that the parties had an enforceable agreement permitting vacation pay to be drawn from commission earnings.

The court held that nothing in the Code prohibited such an arrangement, provided the statutory formula of 4% or 6% of yearly compensation was met.

Finding the agreement enforceable, the court dismissed the action and awarded the defendant $20,000 in costs.

The applicants sought broad interim and substantive relief arising from alleged diversion of corporate funds, oppressive conduct, and disputed ownership interests in two related companies holding and operating a commercial self-storage business.

The court found the principal respondent's evidence not credible, accepted evidence that substantial corporate funds had been removed for personal use, and held that appointment of a receiver-manager over one corporation was just and convenient under s. 101 of the Courts of Justice Act and appropriate under the oppression remedy in s. 248(3) of the Business Corporations Act.

The court also declared that one applicant remained entitled to 50% of the issued shares of the corporation and ordered transfer of the Dura Mortgage to that applicant.

Requests for immediate separation of the related company, debt judgment, and restitutionary judgments were dismissed as premature or unsupported at this stage, without prejudice where specified.

The appellants appealed the dismissal of an unopposed motion for summary judgment.

The Divisional Court found that the facts put forward by the plaintiffs entitled them to the relief claimed, and the defendants did not contest those facts or oppose the motion.

Finding no genuine issue requiring a trial, the court granted summary judgment and awarded costs for the motion, leave to appeal, and the appeal.

Following a summary judgment motion resolved by agreement, the applicant sought costs against the respondent Figueira.

The court held that the applicant was entitled to full indemnity costs based on the clear wording of a promissory note signed by the respondent, which provided for 'all costs of the collection'.

The court apportioned the total costs claimed among the three respondents and awarded the applicant $39,500 in full indemnity costs against Figueira.

The defendant sought leave to appeal a decision refusing to set aside a certificate of pending litigation (CPL) in favour of the plaintiff.

The motion judge had found it arguable that the plaintiff, a limited partner, had a reasonable claim to an interest in the property through a constructive trust.

The Divisional Court found that while there was good reason to doubt the correctness of the motion judge's decision, the proposed appeal did not involve matters of such importance to warrant granting leave, as the motion judge had merely found the legal propositions to be arguable rather than making new law.

Leave to appeal was refused.

The appellant, holding a perfected general security agreement over the assets of a company in receivership, appealed a motion judge's decision granting priority over three injection molding machines to the unpaid supplier.

The supplier had delivered the machines but retained title pending payment and electrical safety certification, which had not yet been obtained.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that because the conditions of sale were not met, the debtor had not acquired any rights in the machines to which the appellant's security interest could attach under the Personal Property Security Act.

The respondent sought costs of the appeal on a partial indemnity scale in the amount of $14,576.70.

The appellant argued the amount was excessive and suggested $3,500.

Applying the principle that costs must be fair and reasonable and not merely a mathematical calculation, the court fixed the respondent's costs at $7,000 all inclusive on a partial indemnity basis.

The appellant appealed a partial summary judgment dismissing his claims for an accounting of partnership profits from 1990 to 2000 and damages for mental distress against two of his former law partners.

The Court of Appeal upheld the dismissal of these claims, finding no error by the motions judge, except regarding the claim for an accounting for the period from January 2000 to July 2001, which the appellant was permitted to pursue.

A cross-appeal seeking to dismiss the claim against a third partner for alleged abusive conduct was dismissed.

The appellant appealed an order of the Master dismissing its action for want of prosecution.

The Master found an inexcusable 12-year delay in bringing the action to trial, including a five-year delay after the limitation period expired, which raised an unrebutted presumption of prejudice.

The Divisional Court dismissed the appeal, holding that the Master made no palpable and overriding error in applying the law or assessing the facts, and that the respondent's failure to spur the action along did not preclude dismissal.

The applicant union applied for certification.

The employer and the intervener employee association argued that an existing collective agreement barred the application.

The Board found that the association lacked a constitution and evidence of employees being bound together by agreement, concluding that the association had ceased to exist as a trade union.

Consequently, the purported collective agreement was not a valid bar to the application.

The Board directed further hearings on the bargaining unit composition and a petition of objection.